Angus v Plumbers, Gasfitters, and Drainlayers Board [2020] NZCA 303 (21 July 2020)

Last Updated: 29 July 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA259/2020 [2020] NZCA 303

	BETWEEN	KEVIN ANGUS Applicant
	AND	PLUMBERS, GASFITTERS, AND DRAINLAYERS BOARD Respondent

Court:	Gilbert and Courtney JJ
Counsel:	C J Griggs for Applicant M J Hodge and R W Belcher for Respondent
Judgment: (On the papers)	21 July 2020 at 3.30 pm

JUDGMENT OF THE COURT

1. The application for leave to appeal is declined.
2. The applicant must pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

• [1] The respondent, the Plumbers, Gasfitters, and Drainlayers Board (the Board), has prescribed minimum standards for registration of a person as a “certifying plumber”.^[1] One requirement is that the applicant must have passed a certifying plumbing examination set by the Board.^[2] The applicant, Mr Angus, has been attempting since 2012 to obtain registration as a certifying plumber despite having failed this examination and therefore not meeting this mandatory requirement. Rather than taking up numerous invitations to re-sit the examination, Mr Angus has sought to overcome the problem through litigation.
• [2] In 2017, Mr Angus appealed to the District Court against what he contended was a “decision” by the Board to decline to register him. Judge Harrop pointed out that there was no such decision because Mr Angus had not applied for registration, recognising he was not eligible to apply having failed the examination. Instead, Mr Angus was in effect attempting to appeal against his examination result:^[3]

[5] Mr Angus has not applied for registration as a certifying plumber because, not having complied with one of the minimum standards, his application would inevitably be unsuccessful. However he has now appealed against what he says is the “decision” to decline to register him, most recently confirmed by letter from the Board dated 10 April 2017. He contends that, for the detailed reasons set out in his notice of appeal dated 19 April 2017, the Board was wrong not to award him a pass mark in the June 2012 examination. He asks the Court to set aside the Board’s decision not to register him as a certifying plumber and seeks a direction that it reconsiders his application [f]or registration without further delay on the basis that he did achieve a pass mark in the examination.

• [3] The letter from the Board dated 10 April 2017, the subject of the appeal, advised Mr Angus that he was not entitled to any additional marks on his June 2012 examination results.
• [4] Mr Angus appealed to the High Court against Judge Harrop’s decision. The appeal was dismissed by Peters J on 31 August 2018.^[4] In agreement with the District Court, Peters J found that no registration decision amenable to appeal under s 162(1)(a) of the Plumbers, Gasfitters, and Drainlayers Act 2006 (the Act) had been made.^[5]
• [5] On 4 September 2018, Mr Angus submitted to the Registrar of Plumbers, Gasfitters, and Drainlayers an application for registration as a certifying plumber. The Registrar replied on 19 September 2018 advising that the application was declined because it was not accompanied by proof that Mr Angus had passed the requisite examination. This information must be provided with an application for registration in terms of s 37(1) of the Act.
• [6] Mr Angus appealed against this decision to the District Court. The appeal was dismissed by Judge Tompkins on the basis there was no jurisdiction to entertain it.^[6]
• [7] Dissatisfied with that outcome, Mr Angus appealed to the High Court. The appeal was dismissed by Clark J on 29 April 2020.^[7] The Judge considered the District Court was correct to dismiss the appeal for lack of jurisdiction.^[8] However, even if Judge Tompkins had erred on the jurisdiction issue, Clark J said she would not have remitted the matter back to the District Court because Mr Angus’ application for registration could not succeed without a pass mark in the qualifying examination.^[9]
• [8] Mr Angus now applies for leave to bring a further appeal to this Court. This would be a fifth appeal on the topic of whether Mr Angus should be registered as a certifying plumber despite being ineligible to apply for such status until he passes the requisite examination.
• [9] The grounds of the proposed appeal are:

(a) The High Court made findings on questions of law which were not considered by the District Court and not stated as questions of law on the appeal as required under s 169(1) of the Act.

(b) The High Court was wrong to find that the District Court lacked jurisdiction to determine the appeal.

• [10] If leave is granted and the appeal succeeds, Mr Angus seeks an order from this Court remitting his appeal back to the District Court for re‑hearing.
• [11] The Act provides in s 162(1)(a) for a right of general appeal to the District Court from a decision of the Board declining registration:

162 Appeals

(1) A person who is dissatisfied with the whole or any part of any of the following decisions, directions, or orders may appeal to the District Court against the decision, direction, or order:

(a) any decision of the Board to decline to register the person or to decline to issue a licence to the person or to decline to renew the licence of the person:

• [12] Section 169 of the Act makes provision for a further appeal to the High Court on a question of law:

169 Appeal on question of law

(1) If, in respect of any appeal under section 162, the Board or the Registrar or the appellant is dissatisfied with any decision of the District Court as being erroneous in point of law, the Board or the Registrar or the appellant may appeal to the High Court on the question of law only.

(2) Every appeal under this section must be heard and determined in accordance with rules of court.

(3) Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far as applicable with the necessary modifications to every appeal under this section.

• [13] There is an issue as to how the appeal provisions in the Act mesh with those in sub-pt 8 of pt 6 of the Criminal Procedure Act 2011 (the CPA). Mr Griggs, for Mr Angus, submits that the High Court was the first appeal court for the purposes of s 303 of the CPA and there is therefore the prospect of a further appeal to this Court with leave. By contrast, Mr Hodge, for the respondent, submits that as the Board made the decision under challenge, the District Court was the first appeal court and the decision of the High Court as the second appeal court is final. On Mr Hodge’s interpretation, there is simply no right of further appeal to this Court under the Act.
• [14] We do not need to resolve this issue for the purposes of the present application. Mr Hodge may well be right that there is no jurisdiction for this Court to entertain the appeal in any event. However, even assuming in Mr Angus’ favour, but without deciding the point, that the first appeal court for CPA purposes was the District Court, this Court could not give leave for the proposed second appeal unless satisfied that it raises a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[10] These criteria are plainly not met in this case. Mr Angus does not meet the criteria for registration as a certifying plumber. This will remain the case until he passes the requisite examination, or this requirement is dispensed with. His application for registration was non-compliant with the statutory requirements and need not have been considered. The Board could not properly have granted it. There is no prospect that this Court would remit Mr Angus’ appeal to the District Court for reconsideration. On any view of the matter, leave for a further appeal to this Court must be declined. No issue of general or public importance arises. Nor can there be any question of a miscarriage of justice having occurred. It would be an affront to common sense and justice to allow the present application in all the circumstances.
• [15] Mr Angus should regard himself as fortunate that we have chosen not to require him to pay increased or indemnity costs on this application. His application for leave to bring yet another appeal on the same core issue borders on being an abuse of the process of the Court.

Result

• [16] The application for leave to appeal is declined.
• [17] The applicant must pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

Solicitors:
Stephens Lawyers, Wellington for Applicant
Meredith Connell, Auckland for Respondent

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^[1] The legislative instrument in force at the relevant times was initially the Plumbers, Gasfitters, and Drainlayers Board (Plumbing Registration and Licensing) Notice 2010. This was superseded by the Plumbers, Gasfitters, and Drainlayers Board (Plumbing Registration and Licensing) Notice 2016 but this made no change to the minimum standards.

^[2] Clause 2.

^[3] Angus v Plumbers, Gasfitters, and Drainlayers Board [2017] NZDC 24136.

^[4] Angus v Plumbers, Gasfitters, and Drainlayers Board [2018] NZHC 2299.

^[5] At [31].

^[6] Angus v Plumbers, Gasfitters and Drainlayers Board [2019] NZDC 18934.

^[7] Angus v Plumbers, Gasfitters and Drainlayers Board [2020] NZHC 835.

^[8] At [64].

^[9] At [74].

^[10] Criminal Procedure Act 2011, s 303(2).